April 17, 2019
Allstate Ins. Co. v Gandron (2019 NY Slip Op 50562(U))
https://www.beynensonlaw.com/case-law/allstate-ins-co-v-gandron-2019-ny-slip-op-50562u/
- Decided
- April 17, 2019
- Citation
- 2019 NY Slip Op 50562(U) · 63 Misc 3d 138(A)
- Posture
- Article 75 petition
- Outcome
- Provider prevailed
- Legal questions
- Court review of arbitration awards · No-show defense: insurer's proof (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Allstate Ins. Co. v Gandron (2019 NY Slip Op 50562(U))
| Allstate Ins. Co. v Gandron |
| 2019 NY Slip Op 50562(U) [63 Misc 3d 138(A)] |
| Decided on April 17, 2019 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 17, 2019
PRESENT: Shulman, P.J., Ling-Cohan, Edmead, JJ.
570364/18
against
Deborah Gandron, Respondent-Appellant.
Respondent appeals from an order of the Civil Court of the City of New York, New York County (Leticia M. Ramirez, J.), entered March 23, 2018, which granted the petition of Allstate Insurance Company to vacate a master arbitrator’s award and reinstated the original arbitrator’s award in favor of petitioner.
Per Curiam.
Order (Leticia M. Ramirez, J.), entered March 23, 2018, reversed, without costs, petition denied and the award of the master arbitrator is reinstated.
Civil Court erred in vacating the master arbitrator’s award on the ground of misconduct (see CPLR 7511[b][1]). The master arbitrator’s measured response to the self-represented respondent-appellant’s apparently unsolicited communication, wherein the master arbitrator, inter alia, directed appellant to serve a copy of her communication upon petitioner Allstate, and indicated that respondent “would be well advised to retain an attorney to advise you of what your rights and chances are,” did not rise to the level of misconduct so as to warrant vacatur of the arbitration award (see Matter of Travelers Ins. Co. v Job, 239 AD2d 289, 289—90 [1997]; cf. Matter of Goldfinger v Lisker, 68 NY2d 225, 227-228 [1986] [“private communication between the arbitrator and one party-litigant, which related to the credibility of the party-litigant and the validity of the amount in dispute, and occurred without the knowledge or consent of the other party-litigant, constitutes misconduct sufficient to warrant vacating the arbitration award”]).
Nor did the master arbitrator exceed his authority, and his determination that there were factual issues concerning whether Allstate complied with the relevant no-fault regulations (see American Tr. Ins. Co. v Clark, 131 AD3d 840 [2015]; 11 NYCRR § 65-3.6[b]) and whether respondent’s nonappearance for a scheduled independent medical examination was excusable (cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept 2004] affd 35 AD3d 720 [2006]), was not irrational.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 17, 2019
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?
This decision: No ground for vacatur or modification shown: the award is confirmed or left in place
Reinstated the master arbitrator's award because his measured response to the pro se claimant's unsolicited communication was not misconduct, and his finding of factual issues on regulatory compliance and the IME nonappearance was not irrational.
Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 34 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law (rules on the question, but another ground decided the case)
On article 75 review, left in place as not irrational the master arbitrator's determination that factual issues existed on whether the insurer complied with 11 NYCRR 65-3.6 (b) and whether the IME nonappearance was excusable.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 4 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- American Tr. Ins. Co. v Clark (2015 NY Slip Op 06759) FollowedThe insurer failed to establish that the assignor's IMEs were scheduled within the 30-day period required by 11 NYCRR 65-3.5 (d).
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2004 NY Slip Op 24527) Contrasted (cf., but see)A proven failure to attend a reasonably requested preclaim IME, timely raised in a denial, does not alone warrant dismissal.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) Contrasted (cf., but see)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Similar decisions
- Allstate Ins. Co. v Longevity Med. Supply, Inc. (2018 NY Slip Op 50238(U))A master arbitrator may apply law to established facts and correct legal error even when reaching a conclusion different from the arbitrator's. The insurer sought vacatur under CPLR 7511 of an award of unpaid no-fault benefits and attorney fees.
- Allstate Ins. Co. v Brown (2019 NY Slip Op 51560(U))The insurer failed to establish grounds to vacate an award rejecting its IME nonappearance defense on a rational evidentiary basis.
- Matter of Allstate Ins. Co. v Westchester Med. Group, M.D. (2015 NY Slip Op 00876)The insurer failed to establish a statutory ground to vacate a master arbitrator's award confirming payment of no-fault benefits.
- Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt. (2016 NY Slip Op 50828(U))An arbitration award directing payment beyond a no-fault policy's monetary limit exceeds the arbitrator's power.
- Matter of Singh v Allstate Ins. Co. (2016 NY Slip Op 01855)The injured claimant's petition to vacate four master arbitration awards denying lost-wage benefits was denied for lack of a vacatur ground.